The New Madison Approach: Keeping Antitrust in Its Lane

In 2018 Assistant Attorney General Makan Delrahim proclaimed the New Madison Approach (“NMA”) to the interface between antitrust and intellectual property. He specifically addressed disputes involving standard essential patents subject to commitments to license on fair, reasonable, and non-discriminatory terms. After the Ninth Circuit’s Qualcomm decision, which implicitly embraced the NMA, controversy continues to rage over the role of antitrust in these disputes. This paper argues that the NMA and Qualcomm decision are correct and that these disputes do not present a competition issue. Antitrust litigation has been a distraction from the root cause of the disputes: There is neither a consensus nor a controlling edict on the patent owners’ fair share of the bounty from standards-based technology. Opponents of the NMA believe that the patent owners’ fair share is tiny, and proponents of the NMA doubt that.

By Gregory J. Werden[1]

On March 16, 2018 Assistant Attorney General Makan Delrahim proclaimed the New Madison Approach (“NMA”) to the interface between antitrust and intellectual property.[2] The pattern for the name was the New Brandeis Movement, which advocates broad attacks on big business.[3] James Madison’s name was taken because he was most responsible for the Constitution’s Intellectual Property Clause[4] and his advocacy of patent protection counterpoints views of Thomas Jefferson quoted in leading patent decisions.[5]

AAG Delrahim addres